229 U.S.

488
33 S.Ct. 809
57 L.Ed. 1292

GEORGE W. BOND et al., Appts.,

v.
UNKNOWN HEIRS OF JUAN BARELA, Deceased, et al.
No. 558.
Submitted December 17, 1912.
Decided June 9, 1913.

Messrs. Richard H. Hanna and Francis C. Wilson for appellants.

Mr. Frank W. Clancy for appellees.
Mr. Justice Van Devanter delivered the opinion of the court:

This suit was begun by a petition for partition and to quiet title, filed by George
W. Bond and eighty-two others in the district court of Valencia county, New
Mexico, against the unknown heirs of twenty-nine persons named, all
deceased, and the unknown owners, proprietors, and claimants of the premises
commonly called the Tome grant, situate in that county, and described as
containing 121,594.53 acres. The plaintiffs alleged that they were owners of an
undivided half interest.

The town of Tome appeared and answered, denying any title or interest in the
plaintiffs, averring that the grant by Spain was to the town in communal right,
was confirmed by act of Congress to the town, a then-existing municipality,
was so patented by the United States, and was incorporated under the laws of
New Mexico; that allotments were made of parts of the land to settlers on the
grant in fee in severalty, and ownership of the residue was in the municipality
and had been held by it exclusively and adversely since it was patented, April
5, 1871.

Doroteo Chaves, with three hundred and ninety-one others, appeared and
answered, denying any individual right in any of the plaintiffs, adopting the
answer of the town as to the communal character of the grant, averring that

they were themselves severally owners in fee of parts of the grant, and resisting
partition.
4

Translations of the title papers were, by stipulation, made parts of the answers.
Demurrers to the latter were overruled, and a reply was filed, to which there
was a demurrer. This demurrer was sustained, and the plaintiffs electing to
stand upon their reply, judgment was rendered dismissing the suit. Upon the
plaintiffs' appeal, the supreme court of the territory affirmed the judgment (16
N. M. 660, 120 Pac. 707), and on a further appeal the case is now before this
court.

The facts are settled by the pleadings. The questions here are whether the
original grant made by the Crown of Spain in 1739 was in fee in individual
right or in communal right to the town, title remaining in the Crown except as
to specific parcels allotted to individuals, and whether, if it was a grant in
individual right, the confirming act of Congress, and the patent pursuant
thereto, changed its character.

The facts, as shown by the record, are these: Juan Barela, with twenty-eight
others, in 1739 petitioned that the governor 'be pleased to donate to them the
land called Tome Dominguez, granted to those who first solicited the same and
whom declined settling thereon.' The governor did 'grant to them, in the name
of his Majesty, whom may God preserve, the land petitioned for, called the
land of Tome Dominguez, for themselves, their successors, and whomever may
have a right thereto under the conditions and circumstances required in such
cases, and which is to be without prohibition to anyone desiring to settle the
same, holding and improving it during the time required by law. In view of
which, I should order, and did order, that said senior justice or his lieutenant,
whose duty it is, shall place them in possession of the aforementioned lands,
giving in all cases to each one the portion he may be entitled to in order to
avoid difficulties which may occur in the future.'

There was a giving of 'juridical possession,'a form and ceremony essential to

the passing of title by grant under the Spanish law. The report of the officer
conducting this ceremony, so far as here material, is as follows: 'In the new
settlement of 'Nuestra Senora de la Concepcion de Tome Dominguez,' instituted
and established by Don Gaspar Mendoza, actual governor and captain general
of this Kingdom of New Mexico, on the thirtieth day of the month of July, in
the year one thousand seven hundred and thirty-nine, . . . the parties concerned
being together, I proceeded to the above-mentioned place, and all being
present, I notified them of the decree; I took them by the hand, walked with
them over the land; they cried out, pulled up weeds, threw stones, as required

by law; and having placed the new settlers in possession of said lands, I gave
them the title and vocation they should have in the settlement, which bears the
name aforementioned. . . . And the first proceedings having been noted, I
proceeded to establish the boundaries as contained in the first petition . . . at
which principal boundaries I ordered them to perpetuate their existence with
permanent landmarks, pointing out to them also, as a means of good economy,
their common pastures, water, and watering places, and uses and customs for
all, to be the same without dispute, with the condition that each one is to use the
same without dispute in equal portions, the richest as well as the poorest; and
by virtue of what has been ordered, I pronounce this royal possession as
sufficient title for themselves, their children, heirs, and successors, to hold their
lands now and forever at their will; directing them, as I do direct them, to settle
the same within the time prescribed by the royal ordinances; and for their
greater quietude, peace, tranquillity, and harmony, I proceeded to point out the
land each family should cultivate, each one receiving in length a sufficient
quantity to plant one fanega of corn, two of wheat, garden and house lot, as
follows:' Here follow nineteen names of original petitioners as given allotments
of land, the name Manuel Carrillo appearing twice. Ten of the petitioners were
not allotted lands, and among those who obtained allotments were five who
were not petitioners.
8

It is unnecessary to discuss at length the question whether the grant made in

1739 passed a title to the persons therein named to the whole tract, or whether
this was merely a grant in severalty of the lands allotted to the persons named
in the report showing juridical possession, leaving title to the unallotted lands in
the Crown, to be allotted to future settlers. Examination shows that the petition,
decree, and report of juridical possession, are in form substantially like those in
United States v. Sandoval, 167 U. S. 278, 42 L. ed. 168, 17 Sup. Ct. Rep. 868,
wherein the effect of such instruments is discussed at length. See also United
States v. Santa Fe, 165 U. S. 675, 41 L. ed. 874, 17 Sup. Ct. Rep. 472; Rio
Arriba Land & Cattle Co. v. United States, 167 U. S. 298, 42 L. ed. 175, 17
Sup. Ct. Rep. 875; United States v. Pena, 175 U. S. 500, 44 L. ed. 251, 20 Sup.
Ct. Rep. 165.

The fact that the governor made the grant 'to be without prohibition to anyone
desiring to settle the same,' that the juridical possession was to be by 'giving in
all cases to each one the portion he may be entitled to,' and that juridical
possession and allotment of land was made to persons not petitioning,in the
theory of the plaintiffs, not beneficiaries of the decree,while no land was
allotted to ten of the petitioners, who, according to the same theory, were
beneficiaries, is not explicable on any other theory than that the grant was
communal, in which settlers and no others could by allotments obtain

individual, several interests. On this construction the omission of allotments to

petitioners not identifying themselves with the new settlement would be the
necessary consequence, as also would be the allotments to new settlers who
were not petitioners.
10

Had the matter stopped therehad no grant been made by Congressthe grant
must have been effective only as to the lands allotted in several right to those
named in the report of juridical possession. Title to and power to disposal over
the residue of the land remained in the Crown, and passed to the United States
upon the acquisition of the territory.

11

There was, however, Congressional confirmation of the grant. In 1856 the

inhabitants of Tome petitioned the surveyor-general for New Mexico for
confirmation of the grant to the town, conformably to the act of July 22, 1854
(10 Stat. at L. 308, chap. 103). It was so confirmed by the act of December 22,
1858 (11 Stat. at L. 374, chap. 5); and April 5, 1871, patent issued to the town
of Tome. It is said that the legal title so passed is subject to a trust for the heirs
of the original petitioners, who, it is claimed, were beneficiaries of the decree
of the Spanish governor in 1739.

12

As no benefit of that decree, and no title to any of the land, passed to any of the
petitioners save those to whom allotments were made, and only to the allotted
tracts, no further discussion is necessary. When patent to the entire grant issued
to the town of Tome, title to all the unallotted land passed from the United
States to the town, unburdened with any trust for heirs or grantees of persons
named in the original petition and decree.

13

Judgment affirmed.